[DOCID: f:publ172.105]
[[Page 112 STAT. 53]]
Public Law 105-172
105th Congress
An Act
To amend title 18, United States Code, with respect to scanning
receivers and similar devices. <<NOTE: Apr. 24, 1998 - [S. 493]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Wireless
Telephone Protection Act. Law enforcement and crime. 18 USC 1001
note.>>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Wireless Telephone Protection Act''.
SEC. 2. FRAUD AND RELATED ACTIVITY IN CONNECTION WITH COUNTERFEIT
ACCESS DEVICES.
(a) Unlawful Acts.--Section 1029(a) of title 18, United States Code,
is amended--
(1) by redesignating paragraph (9) as paragraph (10); and
(2) by striking paragraph (8) and inserting the following:
``(8) knowingly and with intent to defraud uses, produces,
traffics in, has control or custody of, or possesses a scanning
receiver;
``(9) knowingly uses, produces, traffics in, has control or
custody of, or possesses hardware or software, knowing it has
been configured to insert or modify telecommunication
identifying information associated with or contained in a
telecommunications instrument so that such instrument may be
used to obtain telecommunications service without authorization;
or''.
(b) Penalties.--
(1) Generally.--Section 1029(c) of title 18, United States
Code, is amended to read as follows:
``(c) Penalties.--
``(1) Generally.--The punishment for an offense under
subsection (a) of this section is--
``(A) in the case of an offense that does not occur
after a conviction for another offense under this
section--
``(i) if the offense is under paragraph (1),
(2), (3), (6), (7), or (10) of subsection (a), a
fine under this title or imprisonment for not more
than 10 years, or both; and
``(ii) if the offense is under paragraph (4),
(5), (8), or (9), of subsection (a), a fine under
this title or imprisonment for not more than 15
years, or both;
``(B) in the case of an offense that occurs after a
conviction for another offense under this section, a
fine under this title or imprisonment for not more than
20 years, or both; and
[[Page 112 STAT. 54]]
``(C) in either case, forfeiture to the United
States of any personal property used or intended to be
used to commit the offense.
``(2) Forfeiture procedure.--The forfeiture of property
under this section, including any seizure and disposition of the
property and any related administrative and judicial proceeding,
shall be governed by section 413 of the Controlled Substances
Act, except for subsection (d) of that section.''.
(2) Attempts.--Section 1029(b)(1) of title 18, United States
Code, is amended by striking ``punished as provided in
subsection (c) of this section'' and inserting ``subject to the
same penalties as those prescribed for the offense attempted''.
(c) Definitions.--Section 1029(e)(8) of title 18, United States
Code, is amended by inserting before the period ``or to intercept an
electronic serial number, mobile identification number, or other
identifier of any telecommunications service, equipment, or
instrument''.
(d) Applicability of New Section 1029(a)(9).--
(1) In general.--Section 1029 of title 18, United States
Code, is amended by adding at the end the following:
``(g)(1) It is not a violation of subsection (a)(9) for an officer,
employee, or agent of, or a person engaged in business with, a
facilities-based carrier, to engage in conduct (other than trafficking)
otherwise prohibited by that subsection for the purpose of protecting
the property or legal rights of that carrier, unless such conduct is for
the purpose of obtaining telecommunications service provided by another
facilities-based carrier without the authorization of such carrier.
``(2) In a prosecution for a violation of subsection (a)(9), (other
than a violation consisting of producing or trafficking) it is an
affirmative defense (which the defendant must establish by a
preponderance of the evidence) that the conduct charged was engaged in
for research or development in connection with a lawful purpose.''.
(2) Definitions.--Section 1029(e) of title 18, United States
Code, is amended--
(A) by striking ``and'' at the end of paragraph (6);
(B) by striking the period at the end of paragraph
(7) and inserting a semicolon; and
(C) by striking the period at the end of paragraph
(8); and
(D) by adding at the end the following:
``(9) the term `telecommunications service' has the meaning
given such term in section 3 of title I of the Communications
Act of 1934 (47 U.S.C. 153);
``(10) the term `facilities-based carrier' means an entity
that owns communications transmission facilities, is responsible
for the operation and maintenance of those facilities, and holds
an operating license issued by the Federal Communications
Commission under the authority of title III of the
Communications Act of 1934; and
``(11) the term `telecommunication identifying information'
means electronic serial number or any other number or signal
that identifies a specific telecommunications instrument or
account, or a specific communication transmitted from a
telecommunications instrument.''.
[[Page 112 STAT. 55]]
(e) <<NOTE: 28 USC 994 note.>> Amendment of Federal Sentencing
Guidelines for Wireless Telephone Cloning.--
(1) In general.--Pursuant to its authority under section 994
of title 28, United States Code, the United States Sentencing
Commission shall review and amend the Federal sentencing
guidelines and the policy statements of the Commission, if
appropriate, to provide an appropriate penalty for offenses
involving the cloning of wireless telephones (including offenses
involving an attempt or conspiracy to clone a wireless
telephone).
(2) Factors for consideration.--In carrying out this
subsection, the Commission shall consider, with respect to the
offenses described in paragraph (1)--
(A) the range of conduct covered by the offenses;
(B) the existing sentences for the offenses;
(C) the extent to which the value of the loss caused
by the offenses (as defined in the Federal sentencing
guidelines) is an adequate measure for establishing
penalties under the Federal sentencing guidelines;
(D) the extent to which sentencing enhancements
within the Federal sentencing guidelines and the court's
authority to sentence above the applicable guideline
range are adequate to ensure punishment at or near the
maximum penalty for the most egregious conduct covered
by the offenses;
(E) the extent to which the Federal sentencing
guideline sentences for the offenses have been
constrained by statutory maximum penalties;
(F) the extent to which Federal sentencing
guidelines for the offenses adequately achieve the
purposes of sentencing set forth in section 3553(a)(2)
of title 18, United States Code;
(G) the relationship of Federal sentencing
guidelines for the offenses to the Federal sentencing
guidelines for other offenses of comparable seriousness;
and
(H) any other factor that the Commission considers
to be appropriate.
Approved April 24, 1998.
LEGISLATIVE HISTORY--S. 493 (H.R. 2460):
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HOUSE REPORTS: No. 105-418 accompanying H.R. 2460 (Comm. on the
Judiciary).
CONGRESSIONAL RECORD:
Vol. 143 (1997):
Nov. 10, considered and passed
Senate.
Vol. 144 (1998):
Feb. 26, considered and passed
House, amended, in lieu of H.R.
2460.
Apr. 1, Senate concurred in House
amendments.
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